B, R (on the application of) v Brent Youth Court

On a later bail hearing, a court need not rehear factual or legal arguments already considered. The statutory restriction is not limited to whether circumstances have changed. The question is whether there are new considerations that were not before the court when the defendant was last remanded. A materially different proposed residence may constitute a new factual argument, even if it could have been advanced earlier. A legal argument concerning the strength of the prosecution case may also be new. In a youth case, the court must additionally have regard to the welfare of the child or young person and must consider whether to hear the application substantively even where the arguments have previously been advanced.

B sought judicial review of the Brent Youth Court’s refusal on 3 June 2010 to consider a further substantive bail application. He had been remanded in custody on charges of attempted burglary and going equipped to steal, after earlier unsuccessful bail applications before the Youth Court and the Crown Court.

The later application included a proposed residence at a substantially more distant address, an exclusion zone covering the NW10 postal district, arguments based on the passage of time, and a challenge to the apparent strength of the prosecution case. The central issue was whether the Youth Court was entitled to decline to hear the application under Part II A of the Schedule to the Bail Act 1976, having regard to section 44 of the Children and Young Persons Act 1933.

1. The application for judicial review succeeded and the Youth Court’s decision of 3 June 2010 was quashed.
2. Part II A of the Schedule to the Bail Act 1976 requires the court to consider bail at each subsequent hearing. At the first hearing after refusal, the defendant may advance any factual or legal argument. At later hearings the court need not hear arguments already heard, but the restriction applies only to arguments previously considered.
3. The expression commonly used to describe this restriction, namely a “change of circumstance” condition, does not accurately state the statutory test. The relevant question is whether there are new considerations that were not before the court when the defendant was last remanded: Nottingham Justices ex p Davies [1981] 1 QB 38, at page 44 F.
4. The proposed residence in east London was materially different from the earlier addresses, which were within or near the area connected with the alleged offending and the concerns about further offending. It was therefore a new factual argument. The Youth Court’s view that the address could have been offered earlier was legally erroneous.
5. The argument that the prosecution evidence might disclose preparation rather than an attempted offence was capable of being a new legal argument. By contrast, the exclusion zone and the passage of time had already been canvassed and were not new arguments.
6. Even if all the arguments had previously been heard, section 44 of the Children and Young Persons Act 1933 required the Youth Court to have regard to the welfare of the child or young person and to consider whether, notwithstanding the earlier arguments, it should hear the bail application substantively.
7. The court expressed no view on the merits of bail. The matter was remitted to the Brent Youth Court, with an order requiring it to entertain the bail application as soon as practicable and no later than 14 July 2010. The claimant’s costs were subject to detailed assessment.

This was a judicial review claim in the Administrative Court. The decision of the Brent Youth Court dated 3 June 2010 was quashed and the matter was remitted for a substantive bail application to be heard.